How does impartiality work when judges are selected because of their real and perceived biases?

United States Supreme Court Justice Clarence Thomas has been in the news quite a bit over the past several years, most recently for comments he made on May 10, 2024, while speaking at the 11th Circuit Judicial Conference. He made those comments in response to a question by the moderator, U.S. District Judge Kathryn Kimball Mizelle, about “working in a world that seems meanspirited.” Thomas responded in part as follows:

“I think there’s challenges to that. We’re in a world and we – certainly my wife and I the last two or three years it’s been – just the nastiness and lies, it’s just incredible…. But you have some choices…. You don’t get to prevent people from doing horrible things or saying horrible things. But one you have to understand and accept the fact that they can’t change you unless you permit that…. Being in Washington, you have to get used to, particularly, people who are reckless. They don’t bomb you, necessarily, but they bomb your reputation or your good name or your honor. And, that’s not a crime but they can do as much harm that way.”

While I have long taken issue with Justice Thomas, I understand his anger, which is the emotion associated with a perceived injustice.

Justice Thomas is being attacked for alleged ethical violations, as well as bias. Although Justice Thomas’ fellow Associate Justice Samuel Alito has been in the news even more recently, also pertaining to bias and ethics issues, this article focuses on Justice Thomas because of his commentary. In any event, bias is defined as “an unfair personal opinion that influences your judgment.”

However, consider the following reasons why George H. W. Bush nominated Thomas to the United States Supreme Court and why Senators either supported or opposed his confirmation:

· Thomas’ opposition to affirmative action, as well as any policy that gives preferences to members of historically marginalized groups to redress past and present discrimination against them;

· Thomas’ opposition to contraception such that he believed that Griswold v. Connecticut, the 1965 U.S. Supreme Court case which prevented states from making it illegal for married couples to use contraception, was wrongly decided; and

· Thomas’ opposition to abortion based upon his belief that it was murder, and his belief that Roe v. Wade was wrongly decided.

Related thereto, during his confirmation hearing to become Chief Justice of the United States Supreme Court, now Chief Justice John Roberts said, “[I]t’s my job to call balls and strikes, not to pitch or bat.” Don’t one’s personal opinions, among other things, impact how they make such calls?

Think about that because actual and perceived personal opinions on issues have long been relevant in the judicial nomination and confirmation process, which is not to say that such information is irrelevant when judges are elected. Judges tend to get nominated and confirmed or elected to the bench because of their real and perceived personal opinions. For those who believe that such opinions are not considered when judges are elected, consider why prosecutors have long been known to have an advantage when running for judicial office. As prosecutors they are perceived to be “tough on crime,” even though they are not necessarily assigned to criminal court. Furthermore, the real and perceived personal opinions of the individuals campaigning for election to the Wisconsin Supreme Court in 2023 were most certainly considered because of upcoming cases involving abortion rights and redistricting.

When someone believes that their personal opinions are fair, even when they realize that they are influencing their judgement, they do not consider those judgments to be biased because biases only involve unfair personal opinions. In their article “Addressing Implicit Bias in the Courts” that was published in the Court Review: The Journal of the American Judges Association in 2013, Pamela M. Casey, Roger K. Warren, Fred L. Cheesman, and Jennifer K. Elek state that most, if not all, judges sincerely believe that their decisions are made based exclusively on the facts and the law and that their decisions are fair and objective. They are far from alone in that assessment.

Imagine obtaining a judgeship because of your real and perceived personal opinions, and then having your character and integrity maligned for acting in accordance with and not contrary to those opinions. Wouldn’t you experience a sense of injustice? After all, judges and justices not only tend to obtain their position on the bench because of their real and perceived personal opinions, but also because of an expectation that they will make decisions based upon those opinions. The character and integrity sought after by those electing, nominating, or confirming judges is that the judges be closed-minded when it comes to deciding cases based upon their personal opinions which were relevant to their obtaining their judgeship. In other words, judges tend to get elected or nominated and confirmed based upon their lack of character and integrity to keep at least some of their personal beliefs in check when deciding cases.

Many people opine that Justice Thomas is biased and unethical because, for example, he has refused to recuse himself from hearing cases related to Jan. 6, 2021, and former President Donald Trump due to his wife’s efforts to overturn the 2020 election results.

Ethics and bias are related concepts. “An unfair personal opinion that influences your judgment” enables you to justify engaging in behaviors you might otherwise perceive as unethical, immoral, or illegal.

I find it curious that I do not recall ever hearing calls for Justice Thomas to recuse himself from hearing cases pertaining to contraception, abortion, affirmative action, or LGBTQ+ people’s rights, among others.

Speaking of LGBTQ+ rights, although Thomas was not nominated and confirmed to the Supreme Court based upon his personal beliefs about LGBTQ+ rights, he is the only United States Supreme Court Justice currently sitting on the Court who was also a Justice on the Court when it decided Lawrence v. Texas. That case was decided on June 26, 2003, and pertained to the constitutionality of criminalizing consensual sex between two adult males which took place in the privacy of one of their apartments. The primary holding of that case was as follows:

“A Texas law criminalizing consensual, sexual conduct between individuals of the same sex violates the Due Process Clause of the Fourteenth Amendment.”

Thomas, along with then Chief Justice William Rehnquist and Antonin Scalia dissented. Lawrence v. Texas overturned Bowers v. Hardwick, which was decided on June 30, 1986, and held primarily for the following:

“The Fourteenth Amendment does not prevent a state from criminalizing private sexual conduct involving same-sex couples.”

Then Chief Justice Warren E. Burger, along with Justices Byron White, Lewis F. Powell Jr., William Rehnquist, and Sanda Day O’Connor were responsible for the Supreme Court’s decision in Bowers v. Hardwick. Justices White and Powell were appointed by Democratic Presidents, by the way.

To my knowledge, Justice Thomas has opposed all LGBTQ+ rights, when such matters have come before the Supreme Court. Furthermore, when the Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade on June 24, 2022, Justice Thomas wrote a concurring opinion in which he stated as follows:

“[I]n future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswald, Lawrence, and Obergefell. Because any substantive due process decision is ‘demonstrably erroneous’ …, we have a duty to ‘correct the error’ established in those precedents.”

For those who may not recall, Obergefell is the Supreme Court decision issued on June 26, 2015, which made marriage equality the law of the land.

It is no surprise that Justice Thomas would believe that Obergefell was wrongly decided, considering that he believes that states should be permitted to criminalize consensual sex between same-sex adults in the privacy of their own home.

Bear in mind, though, that Canon 3(C)(1) of the Code of Conduct for United States Judges states as follows:

“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”

Justices on the United States Supreme Court were not subject to a Code of Ethics until Nov. 13, 2023, when the Court announced its adoption of a Code of Conduct. The third of five ethical canons the Court adopted is as follows:

“A Justice Should Perform the Duties of Office Fairly, Impartially, and Diligently.”

On the website for the United States Courts is a video titled Court Shorts: Fair and Impartial Judiciary. The following are some excerpts from that video:

“To be a judge is to be independent and impartial, and that is the core element of what it means to be a judge…. I can put on a black robe, and I can sit up on the bench. I am not a judge unless I am independent and I am considering the merits of the legal arguments, and I am making decisions based on the law and only on the law…. What you do want as a judge is for folks who at least are being open-minded about it. When they [the parties] leave the courtroom, to say ‘I was treated fairly in that case. I may have won, I may have lost, but at least I was treated fairly.’ And that, as a judge, is what is most important to me.” - Judge Randolph Moss, U.S. District Court, Washington, DC.

“We don’t swear to uphold the principles of a party or the principles of an ideology, the principles of a religion, anything else. There’s only one thing. It’s to defend the Constitution of the United States of America. And, that’s all we have to do, then.” – Magistrate Judge Zia Faruqui, U.S. District Court, Washington, DC.

“The system only has credibility if judges have credibility. It’s important that we appreciate that we all have biases and that we try and identify those biases and then we consciously try and make sure that we don’t let those biases impact on how we decide cases.” – Judge Reggie Walton, U.S. District Court, Washington, DC.

Judge Walton was the only judge in that video to comment on biases. Still, unless a judge believes that their personal opinion is unfair and is motivated to keep it in check, they will not try and prevent it from influencing their judgment because they do not view it as biased or just don’t care.

If judges and justices are being elected and appointed based upon an expectation that they will make biased decisions, at least on some issues, it is unfair to then expect them to decide cases impartially. You cannot have it both ways by wanting judges and justices to make biased decisions on some issues and impartial decisions on others.

Blaming judges and justices for doing that for which they were elected and appointed to do – decide, at least some, cases in accordance with their personal beliefs – is astounding. Heaven forbid we elect or appoint judges who unpleasantly surprise those responsible for electing or appointing them by demonstrating an open mind when it comes to their personal opinions on matters relevant to their obtaining their judgeship or that they possess the character and integrity to not allow their unfair personal opinions to influence their judgments.

The reason why the United States Supreme Court, for example, has become increasingly more conservative is not just about the party responsible for appointing most of them. Rather, it is about the effort placed on selecting judges believed to be fixed in the beliefs for which they were nominated and confirmed. That also requires a lack of character and integrity to learn and grow.

The title of this column, Balanced Scale, refers to the scale of justice, which is described on the Supreme Court’s website as “symbolizing the impartial deliberation, or ‘weighing’ of two sides in a legal dispute.” Some synonyms for “impartial” are fair, just, objective, and unbiased.